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Humana Inc. v. Cayman Trademark Trust
Case No. D2006-0073
1. The Parties
The Complainant is Humana Inc., Louisville, Kentucky, United States of America, represented by Greenebaum Doll & Mcdonald PLLC, United States of America.
The Respondent is Cayman Trademark Trust, Domain Administrator, Generic Search
Terms, West Bay, Grand Cayman, Cayman Islands, United Kingdom of Great Britain
and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <humanna.com> is registered with BulkRegister.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 17, 2006. On January 18, 2006, the Center transmitted by email to BulkRegister.com a request for registrar verification in connection with the domain name at issue. On January 18, 2006, BulkRegister.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 23, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was February 12, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 13, 2006.
The Center appointed Christopher J. Pibus as the sole
panelist in this matter on February 21, 2006. The Panel finds that it was properly
constituted. The Panel has submitted the Statement of Acceptance and Declaration
of Impartiality and Independence, as required by the Center to ensure compliance
with the Rules, paragraph 7.
4. Factual Background
The Complainant is a leading U.S. health benefits company offering a variety of health insurance products and related services. Its 2004 revenues were US $13.1 billion and as of September 30, 2005, it had approximately 7 million members in its medical insurance programs and 1.7 million members in its specialty products programs.
The Complainant has used the mark HUMANA since as early as 1973, and owns US Trade-mark Registrations and a Canadian Trade-mark Registration for HUMANA. The Complainant owns trade-mark registrations for HUMANA & Design and for many other marks incorporating the term HUMANA in the United States and Puerto Rico. The Complainant also owns registrations for over one hundred domain names incorporating HUMANA as the second level domain, including without limitation, <humana.com>, <humana.net>, <humanahealthinsurance.com> and <humanahealthplan.com>. Its website located at “www.humana.com” received over 5 million visits in 2005.
The Complainant advertises its HUMANA mark in various media, with current advertising expenditures exceeding US $20 million per year. The mark is also publicized through co-promotions with other companies and organizations as well as unsolicited media coverage and press releases.
The Respondent registered the domain name <humanna.com> on October 28, 2001. At the date of the Complaint, the Respondent was operating an active website using this domain name.
The Respondent has failed to file any response in
the present proceedings.
5. Parties’ Contentions
The Complainant’s submissions can be summarized as follows:
(a) Identical or Confusingly Similar – The domain name <humanna.com> is virtually identical to the Complainant’s mark, HUMANA, differing only by the addition of a second “n”. The repeated consonant does not significantly affect the appearance or pronunciation of the domain name. There is also no difference in meaning between HUMANA and “humanna”.
(b) Rights or Legitimate Interests – The Respondent has no rights or legitimate interest in respect of the domain name <humanna.com>. The Complainant’s use of its HUMANA trade-mark predates the Respondent’s registration of <humanna.com> by at least twenty-seven years and the Complainant has not authorized the Respondent to use or register any of the Complainant’s marks. Furthermore, the Respondent uses the domain name in connection with a portal site offering links to sites of the Complainant’s competitors, which use is not a bona fide offering of goods or services nor a legitimate non-commercial or fair use of the domain name. Lastly, the Complainant contends on information and belief that the Respondent does not operate a business under any name consisting of or incorporating HUMANA.
(c) Registered and Used in Bad Faith – The Respondent’s domain name was registered and is being used in bad faith based on the following factors: (i) use of Complainant’s mark with a portal site; (ii) disrupting the business of a competitor; (iii) diverting traffic through confusion; (iv) typosquatting; and (v) a pattern of preventing mark owners from registering corresponding domain names.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
According to paragraph 4(a) of the Policy, in order to succeed, the Complainant must establish each of the following elements:
(i) The Domain Name is identical or confusingly similar to a trade-mark or service mark in which the Complainant has marks;
(ii) The Respondent has no rights or legitimate interest in respect of the Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The first issue in this matter is whether the domain name <humanna.com> is confusingly similar to the Complainant’s mark. There are two elements that must be satisfied to establish this: a) the Complainant has rights in the particular mark or marks; and b) the domain name in question is identical or confusingly similar to that mark.
The first element is readily established and independently
verified by reference to the applicable Trade-marks register. In this case,
presentation of certified true and correct copies of US, Canadian and Puerto
Rican registrations satisfies the threshold requirement of having rights in
the mark HUMANA (Imperial College of Science, Technology and Medicine v.
Zahid Khan (for Imperial College Management School Alumni Association –
ICMSAA), WIPO Case No. D2000-1079).
The domain name <humanna.com> differs from the
mark HUMANA merely by the addition of the letter “n” in the domain
name. This repeated consonant does not significantly affect the appearance or
pronunciation of the domain name. This conduct is commonly referred to as “typosquatting”
and creates a virtually identical and/or confusingly similar mark to the Complainant’s
trade-mark (Wachovia Corporation v. Peter Carrington, WIPO
Case No. D2002-0775). Ample authority exists to support the conclusion that
“essential” or “virtual” identity is sufficient for
the purposes of satisfying the second element above (See Disney Enterprises,
Inc. v. John Zuccarini, Cupcake City and Cupcake Patrol, WIPO
Case No. D2001-0489 (disputed domain names include <disneychanel.com>,
<disneywolrd.com>, <walddisney.com>); United Feature Syndicate,
Inc. v. Mr. John Zuccarini, WIPO Case
No. D2000-1449 (disputed domain name is <dillbert.com>)).
The Panel also accepts the Complainant’s submission
that HUMANA is a coined term with no designated meaning, supporting the conclusion
that the mark is inherently distinctive. In the Panel’s view, and in light
of the Respondent’s failure to produce any evidence to the contrary, the
addition of this different element does not change the meaning of the word and
is therefore not sufficient to obviate or even reduce the likelihood of confusion
(Emmis Television Broadcasting, L.P., d/b/a KNON-TV v. Henry Chan, WIPO
Case No. D2004-0366).
The Panel therefore finds that the Complainant has satisfied the first requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant has established a prima facie case that the Respondent has
no rights or legitimate interests in the domain name <humanna.com> by
establishing that its HUMANA trade-mark predates the Respondent’s registration
of its domain name by at least twenty-seven years and by stating that there
is no relationship between the Complainant or Respondent giving rise to any
license, permission or authorization of the disputed domain name. Because the
Respondent failed to respond to the Complaint, the Complainant is therefore
deemed to have satisfied paragraph 4(a)(ii) of the Policy (Croatia Airlines
d.d. v. Modern Empire Internet Ltd., WIPO
Case No. D2003-0455).
Confirmation appears from the evidence that the Respondent has no rights or
legitimate interests in <humanna.com>, the evidence shows that the Respondent
uses its domain name in connection with a portal site offering links to sites
of the Complainant’s competitors (Complainant’s Submission, Annex
13). Using the Complainant’s mark as a domain name to divert traffic to
Respondent’s own portal site is not a bona fide offering of goods
or services, nor is it a legitimate non-commercial or fair use of the domain
name (Oki Data Americas, Inc. v. Albert Jackson, WIPO
Case No. D2004-0087).
The Panel therefore finds that the Complainant has met the requirement of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel accepts the Complainant’s argument that the essential facts in this case correspond to the example of bad faith cited in paragraph 4(b)(iv) of the Policy.
Firstly, the Respondent uses <humanna.com.> as a portal site offering
links to the sites of the Complainant’s competitors. As already established
above, the disputed domain name is virtually identical and confusingly similar
to the Complainant’s trade-mark. This likelihood of confusion will result
in diversion of Internet traffic from the Complainant’s site to the Respondent’s
site. In this regard, it has been deemed by numerous WIPO UDRP panels that attracting
Internet traffic and diverting it to website(s) selling products of complainant’s
competitors by using a domain name identical or confusingly similar is evidence
of bad faith under paragraph 4(b)(iv) of the Policy (See Volvo Trademark
Holding AB v. Unasi, Inc., WIPO Case No.
D2005-0556; Edmunds.com v. Ultimate Search, Inc., WIPO
Case No. D2001-1319; and National City Corporation v. MH Networks LLC,
Case No. D2004-0128).
Secondly, the Panel further infers that the Respondent is benefiting from this
confusion and diversion by receiving “click-through” commissions
in accordance with conventional practices on the Internet when customers reach
a site through a link on a portal. (Humana Inc. v. Domain Deluxe, WIPO
Case No. D2005-0231).
Finally, by registering a visually and phonetically similar domain name to
the Complainant’s trade-mark that is a misspelling of that mark, the Respondent
is attempting to take advantage of the Complainant’s reputation by capturing
traffic from Internet users looking for the Complainant, but misspelling its
name. This form of “typosquatting” is considered bad faith within
the meaning of the Policy (See Sanofi-aventis v. Elizabeth Riegel and Andrew
Riegal, WIPO Case No. D2005-1045;
and Estйe Lauder Inc. v. estelauder.com, WIPO
Case No. D2000-0869).
The Complainant has brought to the attention of the
Panel the recent decision of National Football League Players Association,
Inc. v. Cayman Trademark Trust d/b/a Trademark, WIPO
Case No. D2005-0234, where the record of the Respondent maintaining basic
portal websites containing numerous hyperlinks to other unrelated websites was
revealed. This decision also stated that previous panels have ordered the Respondent
to transfer domain name registrations, which on at least thirty-two occasions
were found to be registered and used in bad faith. This demonstrated fact of
the Respondent’s history in UDRP proceedings combined with the Respondent’s
registration and use of the Complainant’s widely known trade-mark supports
the finding of bad faith through domain name warehousing (See J.P. Morgan
v. Resource Marketing, WIPO
Case No. D2000-0035; Nikon, Inc and Nikon Corporation v. Technilab, Inc.,
Case No. D2000-1774).
Thus, for all the above-mentioned reasons, The Panel finds that the Complainant
has met the requirement of paragraph 4(a)(iii) of the Policy.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <humanna.com> be transferred to the Complainant.
Christopher J. Pibus
Dated: March 7, 2006